T.N.T. v. A.R.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

T.N.T.,

Plaintiff-Appellant,

v.

A.R.G.,

Defendant-Respondent.

______________________________

September 2, 2015

Argued March 25, 2015 Decided

Before Judges Alvarez, Maven and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-0785-13.

T.N.T., appellant, argued the cause pro se.

Vincent J. Gaughan argued the cause for respondent (Law Offices of Cynthia D. Sora, attorneys; Mr. Gaughan, on the brief).

PER CURIAM

Plaintiff T.N.T. appeals a January 8, 2014 Family Part order awarding defendant A.R.G. sole custody of their infant son and child support in the amount of $44.00 per week. We affirm.

The parties were married on March 16, 2012, while they were both serving in the United States Navy and residing in Virginia. On June 7, 2012, shortly after learning she was pregnant, defendant moved to New Jersey to live with her mother.

In August 2012, defendant sought a domestic violence restraining order in New Jersey against plaintiff after he entered her mother's apartment through an unlocked door, and woke defendant to serve her with a divorce complaint he had filed in Virginia.1 After the judge found that plaintiff committed an act of criminal trespass by entering the apartment despite several warnings from defendant and her mother, a final restraining order (FRO) issued on August 27, 2012.

Defendant gave birth to the parties' son on February 9, 2013. On February 19, 2013, plaintiff filed an order to show cause (OTSC) against defendant, requesting restraints and temporary custody of their infant child based upon allegations that defendant threatened to harm the child and that she suffered from mental health issues. The court denied plaintiff's application finding that he did not demonstrate a risk of immediate and irreparable harm.

Thereafter, simultaneous paternity and custody proceedings ensued in New Jersey and Virginia. On February 25, 2013, defendant filed for child support and sole legal custody under the domestic violence docket number (FV docket). Plaintiff cross-moved for dismissal, arguing that only Virginia had jurisdiction based upon his filed divorce complaint. On March 14, the parties appeared before an FV judge who ordered paternity testing.

Thereafter, on March 21, plaintiff also filed a complaint in New Jersey under a non-dissolution docket number (FD docket) to "disestablish paternity." He then withdrew it and instead filed a motion in Virginia to establish paternity. On May 23, a Virginia court ordered paternity testing. However, by order dated August 1, the Virginia court "decline[d] to exercise jurisdiction over the minor child of the parties, provided that [d]efendant either has filed a custody action in an appropriate New Jersey Court or does so within [thirty] days." The Virginia paternity test was not completed.

In September, the New Jersey paternity test confirmed that plaintiff was the child's father. On October 24, the parties returned to court and the FV judge ordered that all of the "issues of paternity, custody, child support and parenting time be addressed under [an FD docket.]" That same day, defendant transferred her claims for custody and support from the FV docket to the FD docket. Plaintiff renewed his request for the court to decline jurisdiction in New Jersey.

On January 8, 2014, the FD judge conducted a hearing on the parties' cross-motions. Plaintiff failed to appear and defendant appeared with counsel. The judge phoned plaintiff from the courtroom and an unidentified male answered. The man stated that plaintiff was not available and the call ended. Defendant indicated that she recognized the voice as plaintiff's. The court found plaintiff in default and proceeded with the hearing.

Defendant's counsel argued for sole custody, pointing to plaintiff's "erratic behavior" in dodging the court's phone call. She pointed out that plaintiff never asked to see the child and "never even approached the child when they [have] been in court together." She argued that, although plaintiff had filed several applications in both New Jersey and Virginia, he never requested parenting time. Additionally, counsel pointed to plaintiff's pattern of harassing behavior, such as making two referrals against defendant with the Division of Child Protection and Permanency (Division)2 and violating the FRO.3 Counsel argued against a joint custody order, fearing that plaintiff might take the child from daycare and remove the child from New Jersey. Despite her concerns, defendant was willing to provide plaintiff with information pertaining to the child's health, education, and welfare, and was amenable to meeting him halfway between their homes for supervised visitation.

The judge initially awarded joint custody

As it relates to an application to establish custody, the [c]ourt will establish joint legal custody between the parties with the defendant mother as the parent of primary residence. Any request for parenting time . . . will be granted but it will be supervised visitation through the court supervised visitation program . . . . So, and that is here in New Jersey so to the extent and at whatever time [plaintiff] decides that he may want to enjoy some parenting time, it will be supervised until such time as there's a subsequent order eliminating that.

After further argument from counsel, the court stated, "All right. [Counselor], you've persuaded me. I will grant the application for sole custody and any visitation shall be under the supervised circumstances," referring to a court-supervised visitation program.

The judge dismissed plaintiff's application challenging jurisdiction due to his failure to appear. The court found that the laboratory test, which showed a 99.99% probability that plaintiff was the father of the child, established paternity. Then the judge granted sole custody "for reasons as stated on the record." Plaintiff's child support obligation in the amount of $44 per week was calculated pursuant to the Child Support Guidelines. This appeal followed.

II.

On appeal, plaintiff raises the following points

I. THE TRIAL COURT ERRED BY DISMISSING [THE ORDER TO] SHOW CAUSE FOR A PLENARY HEARING FEBRUARY 19, 2013.

II. THE TRIAL COURT ERRED BY ADJOURNING THE PLENARY HEARING FOR RELOCATION NOVEMBER 21, 2013 WITHOUT NOTICE TO [] PLAINTIFF.

III. THE TRIAL COURT ERRED BY GRANTING SOLE LEGAL AND RESIDENTIAL CUSTODY WITHOUT IMPLEMENTING THE BEST INTEREST STANDARD.

IV. THE DEFENDANT HAS PARENTALLY ALIENATED HER HUSBAND AND SON BY INTERFERENCE WITH CUSTODY.

V. THE DEFENDANT HAS MADE KNOWINGLY FALSE STATEMENTS IN OFFICIAL PROCEEDINGS UNDER OATH THAT HAVE AFFECTED THE OUTCOME OF THE CUSTODY PROCEEDINGS.

VI. THE DEFENDANT HAD UNLAWFULLY CONFINED THE MARRIED COUPLE'S CHILD THROUGH DECEPTION FOR ELEVEN MONTHS WITHOUT CONSENT PRIOR TO THE JANUARY 8, 2014 CUSTODY ORDER.

VII. THIS COURT SHOULD REVERSE THE JANUARY 8, 2014 ORDER THAT WAS MADE BASED ON FALSE STATEMENTS.

VIII. ON REMAND, THIS MATTER SHOULD BE HEARD BY A DIFFERENT JUDGE.

As a threshold issue, a procedural problem is posed by the insufficiency of plaintiff's notice of appeal, which lists only the January 8, 2014 order. We note that his accompanying civil case information statement (CIS) also refers to the January 8, 2014 order under review, specifically "sole legal and residential custody," and "[i]ncome imputed to plaintiff."

New Jersey Court Rule 2:5-1(f)(3)(A) requires the notice of appeal in civil actions to "designate the judgment, decision, action or rule, or part thereof appealed from." Therefore, we will only address the January 8, 2014 order. See, e.g., 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in her notice of appeal); Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (declining to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001). Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2015).

Point I of plaintiff's brief addresses the February 19, 2013 court order denying the OTSC, and Point II refers to a November 1, 2013 court notice. Neither of these claims are related to the January 8, 2014 order.

In Points IV, V, and VI, plaintiff argues for the first time on appeal that defendant committed criminal offenses related to both their child and prior court proceedings.4 In this State, "our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation and internal quotation marks omitted). Accordingly, we will not address these arguments.

As to the remaining arguments, the scope of our review of a trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We defer to the Family Part's findings of fact. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008). We treat these findings as "'binding on appeal when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We afford this deference to the Family Part because it "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); accord N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261 (2007). This deferential standard of review is especially appropriate because of the Family Part's "specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

We expand our highly deferential scope of review when the alleged error does not involve witness credibility but instead turns on the trial court's application of the law to the underlying facts and the implications the court draws from those facts. G.L., supra, 191 N.J. at 605. Nonetheless, we only disturb the Family Part's findings and conclusions if they are "so wide of the mark that the judge was clearly mistaken." Ibid.

In Point III, plaintiff argues that the Family Part judge abused his discretion by granting sole custody without discussing the best interests of the child and without articulating his reasoning in the decision.

Ordinarily, "the opinion of the trial judge in child custody matters is given great weight on appeal." Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994). In deciding custody issues, New Jersey courts should apply the factors set forth in N.J.S.A. 9:2-4, thereby effectuating the legislative intent. Terry, supra, 270 N.J. Super. at 118. The statute provides, in relevant part

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

[N.J.S.A. 9:2-4(c).]

As a general proposition, a trial court's obligation to make findings of fact and conclusions of law is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-11 (2004). Rule 1:7-4(a) succinctly states this requirement and mandates that the court "shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right." "Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law. The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citations omitted).

However, this court need not remand where it can fairly glean the trial court's reasoning from the record. See, e.g., Loro v. DelColliano, 354 N.J. Super. 212, 220 (App. Div. 2002) ("While the judge's stated reasons are not a paradigm of the findings required by [Rule] 1:7-4, a culling of the text of the orders together with the extended colloquy with counsel over this multi-day oral argument provides a sufficient basis for the award entered."), certif. denied, 174 N.J. 544 (2002). Additionally, the Family Part may satisfy its obligation to make findings of fact and conclusions of law by adopting a position advanced by one of the parties. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009) (requiring trial courts to state adoption of reasons advanced by parties explicitly).

Here, in light of the judge's colloquy with counsel, we have no doubt that he considered and applied the N.J.S.A. 9:2-4(c) factors in awarding sole custody. The court expressly stated that it found defense counsel's arguments were persuasive and adopted them by reference. Thus, although the court did not make formal factual findings regarding the statutory factors, we can glean the court's reasons from its statements establishing paternity, custody, and supervised visitation. Loro, supra, 354 N.J. Super. at 220.

It is apparent that the judge considered the custody factors when he adopted defense counsel's argument. First, this judge presided over the OTSC filed by plaintiff after the child's birth and was aware that plaintiff filed multiple challenges to paternity and jurisdiction in Virginia and New Jersey. Second, the acrimony between the parties was borne out in court records, notably the entry of an FRO, the subsequent contempt charges, and two baseless referrals to the Division against defendant. This record demonstrates "the history of domestic violence" and the parties' "[in]ability to communicate and cooperate in matters relating to the child." Finally, though plaintiff never requested parenting time, the judge acknowledged defendant's "willingness to allow parenting time" and granted plaintiff supervised visitation.

In sum, the court did not err by adopting the findings of fact argued by defense counsel. While the decision does not discuss with precision the reasons underlying the sole custody determination, we are satisfied by the record and the judge's statements that the requisite statutory factors were applied. Accordingly, we conclude that the record "provide[d] clear evidence that the trial judge . . . did not abdicate his decision-making responsibility." In re Trust Created by Agreement Dated Dec. 20, 1961, 399 N.J. Super. 237, 254 (App. Div. 2006), aff'd, 194 N.J. 276 (2008).

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e) (1)(E).

Affirmed.

1 Plaintiff's Virginia divorce complaint sought custody of the yet unborn child.

2 The record discloses that two referrals were made to the Division, one in February 2013 and another in May 2013. In both instances the Division determined that the allegations were unfounded after investigation.

3 The Prosecutor's Office remanded the criminal contempt charge to the Family Part, after which a judge dismissed the case for lack of jurisdiction.

4 Point IV alleges that defendant violated N.J.S.A. 2C:13-4(a)(2), interference with custody; Point V alleges perjury, N.J.S.A. 2C:28-1; and Point VI alleges that defendant committed kidnapping, as defined in N.J.S.A. 2C:13-1(b).